What was Tenancy Tribunal case 4635352 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4635352?

Een Made In This Case, And The Tribu…: $670.00 awarded to landlord

What type of tenancy dispute was case 4635352?

The primary dispute was Mould & damp. Related themes: Healthy homes, Leaks, Boarding House.

Where can I read the official tribunal order for case 4635352?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9466975-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4635352 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4635352?

Een Made In This Case, And The Tribu…: $670.00 awarded to landlord

What type of tenancy dispute was case 4635352?

The primary dispute was Mould & damp. Related themes: Healthy homes, Leaks, Boarding House.

Where can I read the official tribunal order for case 4635352?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9466975-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4635352 — Mould & damp

Claims and awards in Tenancy Tribunal application 4635352. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
een made in this case, and the Tribunal orders suppression of the Tenant name and identifying details. 2. The rent is se	$670.00		een made in this case, and the Tribunal orders suppression of the Tenant name and identifying details. 2. The rent is se

Claims and awards in Tenancy Tribunal application 4635352. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
een made in this case, and the Tribunal orders suppression of the Tenant name and identifying details. 2. The rent is se	$670.00		een made in this case, and the Tribunal orders suppression of the Tenant name and identifying details. 2. The rent is se

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
The rent is set at $670.00 per week from 20 July 2023 for a period of six months.
Property Brokers Limited As Agent For Wallis Street Limited must pay [The tenant/s] the amount of $20.44 (filing fee) immediately.
The landlord must refund the tenant any rent that has been paid in excess of the above weekly rent by 5:00pm on 4 October 2023. If the landlord has not complied with this order by this date and time, the tenant may email the Tribunal at [redacted] (and “cc” the landlord) and the file will be reopened and a short telephone hearing scheduled to determine the amount of any rent refund.

Reasons

The tenant and two representatives for the landlord attended the hearing on 6 September 2023. References to the landlord in this decision are to the landlord’s agent.
The tenant has applied for the rent to be reduced in line with market rent. Background
The tenancy started on 31 March 2021. The tenant entered into the tenancy “sight unseen” as he was in Covid-19 lockdown in [City] at the time of signing the agreement.
The initial rent was $680.00 per week. The tenant says that the property was advertised as being 4 bedrooms when it was in fact 3 bedrooms (one of which is detached from the main house).
The landlord issued a notice to increase rent to $850.00 per week from 1 April 2022. The tenant objected and (after some weeks of communication) this was renegotiated to $740.00. I was told in the hearing that the new rent was paid from 21 June 2023 (there is no written confirmation of this in the evidence).
The landlord emailed the tenant on 14 April 2023 (1:46pm) giving the required 60 days’ notice of an increase in rent to $800.00 per week commencing from 20 June 2023.
The tenant again objected.
On 2 June 2023, the landlord sent a second notice of rent increase to $775.00 per week effective from 11 July 2023. The notice says that the notice is given “from 8th May 2023 as per your acknowledgement in email dated 2/6/2023”.
[The tenant/s] filed this application with the Tribunal on 20 July 2023.
The property managers said in the hearing that an offer to keep rent at $740.00 per week was put to the tenant the day before this hearing. The tenant says it was an offer of $720.00.
The tenant does not accept the landlords’ offers, has not yet paid increased rent, and wants the Tribunal to determine the application. The legal considerations
Sections 25(1), (3) and (4) Residential Tenancies Act 1986 (RTA) provide: (1) On an application made to it at any time by the tenant, the Tribunal may, in accordance with the succeeding provisions of this section, on being satisfied that the rent payable or to become payable for the tenancy exceeds the market rent by a substantial amount, make an order reducing the rent to an amount, to be specified in the order, that is in line with the market rent. .... (3) For the purposes of this Act, the market rent for any tenancy shall be the rent that, without regard to the personal circumstances of the landlord or the tenant, a willing landlord might reasonably expect to receive and a willing tenant might reasonably expect to pay for the tenancy, taking into consideration the general level of rents (other than income-related rents within the meaning of section 2(1) of the Public and Community Housing Management Act 1992) for comparable tenancies of comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant. (4) An order made under this section shall take effect on and from a date to be specified in the order, which may be the date of the order or any earlier or later date, but being no earlier than the date of the application for the order and no later than 30 days after the date of the order.
The tenant must prove on the balance of probabilities that the rent exceeds market rent by a “substantial amount”. There must be evidence from which the Tribunal can determine the market rent. 1
The term 'substantial' is not defined in the RTA, but it is the opposite of ‘minor’ or ‘insignificant’.
The market rent is the amount that: a. “without regard to the personal circumstances of the landlord or the tenant”, b. “a willing landlord might reasonably expect to receive and a willing tenant might reasonably expect to pay for the tenancy”; s25(3) RTA.
“Personal circumstances” that cannot be taken into account includes such things as financial, family, employment, health and other individual aspects of a person; Thompson v Department of Education DC Rotorua 63/89, 10 May 1989.
The assessment of market rent must therefore be quite objective and both parties must be 'willing', implying not constrained by circumstances to accept an excessive rent. 2 Rent must meet their 'reasonable' expectations. These terms are not defined by the Act. The Oxford English dictionary defines willing as: "having a ready will; disposed to consent or comply; ready to do (what is specified or implied) without reluctance"; and reasonable as "having sound judgement; sensible ... not asking for too much ... not extravagant or excessive; moderate".
The factors the Tribunal must have regard to are “the general level of rents ... for comparable tenancies of comparable premises in the locality or in similar localities”; s25(3) RTA.
The evidence for comparable rents is usually based on advertisements for similar premises in the locality. This evidence can be of limited value because:- 1 The first task for the Tribunal is to determine what the market rent is. If there is not enough evidence to establish this, an application under section 25 RTA must fail; see Fisken & Associates Limited v Lecole and Lecole [2023] NZDC 17698, at paragraph 29. 2 Thompson v Department of Education DC Rotorua 63/89, 10 May 1989. a. the rent is the advertised rent, which may not be the same as the actual rent eventually agreed to by the parties, b. advertisements usually only list the essential features of the property advertised so a full comparison is difficult, c. advertisements only show houses currently available for rent so do not necessarily reflect the overall level of rents charged for existing similar tenancies in the area.
It is also common for parties to refer to the 'market rent' statistics published by Tenancy Services. 3 These give lower, median, and upper quartile 4 rents based on bonds lodged over the preceding six-month period within a selected locality and across various dwelling types. 5 The data includes only privately-owned properties, not government owned, there is no distinction between furnished and unfurnished properties, and data where the bond lodgement information is incomplete are excluded.
The Tribunal may also consider “such other matters as the Tribunal considers relevant”; s25(3) RTA. As already noted, these cannot be factors related to the parties’ personal circumstances and, in my view, should not contradict the approach that a market rent comes from a consensual ‘willing tenant, willing landlord’ relationship.
Section 25(4) RTA provides that a market rent order may not take effect any earlier than the date of the application or any later than 30 days after the date of the order. The order may last for up to 6 months in the case of a periodic tenancy, or for such shorter period the Tribunal specifies. In the case of a fixed term tenancy, the order remains in force for the period specified in the order. See s26 RTA. The evidence
The Tribunal must make the decision based on the evidence presented to it.
The tenant provided the following evidence:- a. Proof that the premises consist of 3 bedrooms and 3 bathrooms. Two bedrooms are in the main house with en-suites attached. An additional 3 Tenancy Services is a government agency and is part of the Ministry of Business, Innovation and Employment (MBIE). 4 Lower quartile – the weekly rent at 25% of all rents when placed in order of value; median rent – the middle value when all rents placed in order of value; upper quartile – the weekly rent at 75% of all rents when placed in order of value. From Tenancy Services website/market-rent. 5 Dwelling types include ‘house/townhouse’, apartment’, ‘boarding house room’, ‘room’ and ‘bedsit/flat’. There are definitions on the Tenancy Services ‘market rent explained’ page however the dwelling type is self- selected by the person (usually the landlord) who fills in the Bond Lodgement form. Dwelling types are divided into the bedroom size eg; 2 bedroom house, one bedroom flat. bedroom is in a detached sleep-out. There is another main bathroom in the house. b. Rent data from the Tenancy Services website from bonds lodged for the [location] area in the six months from 01 December 2022 to 31 May 2023. 144 bonds were lodged for 3-bedroom houses during that period. Reported rents were: - lower quartile $565.00 -median rent$600.00 -upper quartile$680.00 c. Evidence as to the quality of the premises and that the tenant considers it to be of “median” quality. A report from the ‘[Property]’ website records that it was built in the 1980s, has fibre cement cladding and an ironsteel roof. Photographs from a property inspection report in August 2023 show an A- frame style home, record some minor flaws inside (a gib-line crack, old leak mark on ceiling, loose light fixtures, paint flaking in a bathroom) and two small chips on cladding and flaking paint in one area. The report records that two of the three bathrooms do not have an extractor fan. d. The tenancy agreement records that the ceiling is not insulated on the basis that it is exempt. The property managers say that they understand this to be due to the A-frame design. The underfloor is stated to be insulated. e. Photographs taken of the inside of the master bedroom windows in the morning and evening in August 2023 show condensation. The tenant says that the aluminium windows are single-glazed and that the lack of ceiling insulation means heating is required which causes “constant moisture” and mould to grow for much of the year. f. Evidence as to the location of the property being that it is in the centre of [location] town with the advantages of being close to the village amenities but with some disadvantage from late-night weekend noise (especially due to a nearby pub and nightclub). g. Properties advertised for rent on [website] on 20 July 2023 being: i. [Property 1] – which I did not consider because it is located some distance out of [location] (so is not a comparable locality), ii. [Property 2], 4 bedroom, $580.00 per week – which I did consider, iii. [Property 3], 3 bedrooms, $680.00 – which I did not consider because there were no photographs (so I did not know if it was comparable premises). h. Properties advertised on “[website 2] on 20 July 2023 being: i. [Property 4], 3 bedrooms, $680.00 – which I did consider, ii. Heart of Town, 3 bedrooms, $700.00 – I did consider. i. Properties advertised on [website 3] on 20 July 2023 being: i. [Property 5], 4 bedrooms, $700.00 – I did consider, ii. [Property 6], 3 bedrooms, $530.00 which I did not consider because there was only one photo provided (of the kitchen) which was insufficient to allow me to compare premises.
The landlord did not provide evidence of comparable properties.
The property managers agreed that the premises are probably of “median” quality.
I have taken into account an email sent by the landlord owner to its agent. I note that: a. The landlord asks whether the fact that the tenant has been paying $740.00 since June 2022 helps set the market rent, b. There is reference to increases in costs including rates and insurance and to spending on repairs and maintenance, c. There is reference to “CPI” (which I take to be the Consumer Price Index) as the landlord says that the tenant referred to this as a method of calculating a rent review and that it shows that inflation is a real cost. The landlord then states that from the start of the tenancy to 30 June 2023: ... the percentage increase [in CPI] is 15.26%, representing an increase of $103.78 per week ... and since the last rent review to 30 June 2023 ... then the increase is 11.3% or $83.63 per week My decision
I have considered the evidence and agree with the tenant and the agent that the tenancy premises are of median quality. The inspection report photographs show a modest exterior and a tidy interior with older-style kitchen (free-standing stove, formica benchtops and laminate cupboards), and renovated median- quality bathrooms.
The evidence from Tenancy Services bond data is that the median rent for 3- bedroom houses in [location] is $600.00 per week.
The median rent means that 50% of rents are higher and 50% are lower. It does not necessarily mean that the premises near the median rent are of median quality. However, I accept that the quality of a property will likely be one factor in determining the rent.
The evidence from the advertised comparable tenancies within [location] township is of rent of between $580.00 per week for a similar quality premises (with an additional bedroom) up to $700.00 per week (a new, higher quality 3- bedroom townhouse in a central locality and a higher quality 4-bedroom home further from the central area).
Evidence of any percentage movement in the rental market in this location, rather than the general CPI, may be relevant however I was not provided with this evidence.
I do not consider that the fact that the tenant agreed to pay $740.00 per week a year ago indicates that the market rent must be at least this much. The tenant supplied evidence that satisfies me that his agreement to pay this amount was ‘reluctant’ rather than ‘willing’ and was given after 3 or more months of negotiating with the previous agents in an effort to resolve matters and avoid making a Tribunal application.
I also note that the rental of $680.00 per week at the start of the tenancy was probably based on a misrepresentation of the number of bedrooms in the premises. The tenant said that the advertising was of a 4-bedroom house. He could not inspect the premises as he was in lockdown. He relied on the accuracy of the information given to him. This may be an error in the agents’ records as a recent email sent to the tenant to explain the current rent review again referred to the home as having 4-bedrooms and gave examples of rents for other homes of that size (although not in [location]). 6 The agent should ensure that its records are correct.
Arguably, the rent has been above market rent for a 3-bedroom property of a median quality, in central [location], for the entire tenancy.
Taking all of the above into account, in my view the market rent for these premises as at June/July 2023 is $640.00 per week.
The proposed rent of $800.00 per week (in the notice given on 14 April 2023) is substantially more than this.
The proposed rent of $775.00 per week (in the notice given on 2 June 2023) is also substantially more than this. The evidence before me does not show that this email gave the minimum 60 days’ notice as required by s24 RTA however the tenant has not challenged this, so I have not set it aside.
I now set the rent at $670.00 per week commencing from the date of the tenant’s application which is 20 July 2023 and for the period of 6 months (which is the maximum time allowed by section 26 RTA). 6 Email from agent for landlord entitled “Re: Rent Increase [Tenancy address suppressed]” sent 2 May 2023 at 15:22.
This rent is “in line with” the market rent of $640.00 per week as it is almost 5% more than this. It is $70.00 per week more than the median rent for a 3- bedroom house in [location].
As far as I am aware, the tenant has been continuing to pay the previous rent rate of $740.00 per week. I have therefore made an order that the landlord must refund any excess rent paid.
If the refund has not been paid by the date set in the order, the tenant may notify the Tribunal and a second telephone hearing will be scheduled to determine the amount to be paid. Filing fee and suppression of name
The tenant has wholly succeeded with the claim, so I also reimburse the filing fee and suppress his name; s95A and s102 RTA.

Tenancy Tribunal case 4635352 — Mould & damp

At a glance

Tenancy Tribunal case 4635352 — Mould & damp

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions